Agency for Health Care Administration; certificates of need; sheltered beds; community beds.

(1) The provisions of this section shall control in the case of conflict with the provisions of the Health Facility and Services Development Act, ss. 408.031-408.045; the provisions of chapter 395; the provisions of part II of chapter 400; or the provisions of part I of chapter 429.

(2) The Agency for Health Care Administration shall issue a certificate of need to any holder of a provisional certificate of authority pursuant to s. 651.022 to construct nursing home beds for the exclusive use of the prospective residents of the proposed continuing care facility if the holder of the provisional certificate of authority meets the agency’s applicable review criteria, utilizing the bed need provisions of subsection (4).

(3) Nursing home beds located within a continuing care facility for which a certificate of need is issued pursuant to subsection (2) shall be known as sheltered nursing home beds.

(4) Not including the residences of residents residing outside the facility pursuant to a continuing care at-home contract, the Agency for Health Care Administration shall approve one sheltered nursing home bed for every four proposed residential units, including those that are licensed under part I of chapter 429, in the continuing care facility unless the provider demonstrates the need for a lesser number of sheltered nursing home beds based on proposed utilization by prospective residents or demonstrates the need for additional sheltered nursing home beds based on actual utilization and demand by current residents.

(5) Construction on any sheltered nursing home beds may not begin until the holder of the provisional certificate of authority has been issued a certificate of authority under s. 651.021 and a certificate of need from the Agency for Health Care Administration.

(6) Unless the provider already has a component that is to be a part of the continuing care facility and that is licensed under chapter 395, part II of chapter 400, or part I of chapter 429 at the time of construction of the continuing care facility, the provider must construct the nonnursing home portion of the facility and the nursing home portion of the facility at the same time. If a provider constructs less than the number of residential units approved in the certificate of authority, the number of licensed sheltered nursing home beds shall be reduced by a proportionate share.

(7) Notwithstanding subsection (2), at the discretion of the provider, sheltered nursing home beds may be used for persons who are not residents of the continuing care facility and who are not parties to a continuing care contract for up to 5 years after the date of issuance of the initial nursing home license. A provider whose 5-year period has expired or is expiring may request an extension from the Agency for Health Care Administration, not to exceed 30 percent of the total sheltered nursing home beds or 30 sheltered beds, whichever is greater, if the utilization by residents of the nursing home facility in the sheltered beds will not generate sufficient income to cover nursing home facility expenses, as evidenced by one of the following:

(a) The nursing home facility has a net loss for the most recent fiscal year as determined under generally accepted accounting principles, excluding the effects of extraordinary or unusual items, as demonstrated in the most recently audited financial statement.

(b) The nursing home facility would have had a pro forma loss for the most recent fiscal year, excluding the effects of extraordinary or unusual items, if revenues were reduced by the amount of revenues from persons in sheltered beds who were not residents, as reported by a certified public accountant.

The Agency for Health Care Administration may grant an extension to the provider based on the evidence required in this subsection. The Agency for Health Care Administration may request a continuing care facility to use up to 25 percent of the patient days generated by new admissions of nonresidents during the extension period to serve Medicaid recipients for those beds authorized for extended use if there is a demonstrated need in the respective service area and if funds are available. A provider who obtains an extension is prohibited from applying for additional sheltered beds under subsection (2), unless additional residential units are built or the provider can demonstrate need by continuing care facility residents to the Agency for Health Care Administration. The 5-year limit does not apply to up to five sheltered beds designated for inpatient hospice care as part of a contractual arrangement with a hospice licensed under part IV of chapter 400. A continuing care facility that uses such beds after the 5-year period shall report such use to the Agency for Health Care Administration. For purposes of this subsection, “resident” means a person who, upon admission to the continuing care facility, initially resides in a part of the continuing care facility not licensed under part II of chapter 400, or who contracts for continuing care at-home.

(8) A provider may petition the Agency for Health Care Administration to use a designated number of sheltered nursing home beds to provide assisted living if the beds are in a distinct area of the nursing home which can be adapted to meet the requirements for an assisted living facility as defined in s. 429.02. The provider may subsequently use such beds as sheltered beds after notifying the agency of the intended change. Any sheltered beds used to provide assisted living pursuant to this subsection may not qualify for funding under the Medicaid waiver. Any sheltered beds used to provide assisted living pursuant to this subsection may share common areas, services, and staff with beds designated for nursing home care, provided that all of the beds are under common ownership. For the purposes of this subsection, fire and life safety codes applicable to nursing home facilities shall apply.

(9) This section does not preclude a provider from applying to the Agency for Health Care Administration for a certificate of need for community nursing home beds or a combination of community and sheltered nursing home beds. Any nursing home bed located in a continuing care facility which is or has been issued for nonrestrictive use retains its legal status as a community nursing home bed unless the provider requests a change in status. Any nursing home bed located in a continuing care facility and not issued as a sheltered nursing home bed before 1979 must be classified as a community bed. The Agency for Health Care Administration may require continuing care facilities to submit bed utilization reports for the purpose of determining community and sheltered nursing home bed inventories based on historical utilization by residents and nonresidents.

(10) Whenever the department has been appointed receiver of a provider pursuant to the provisions of part I of chapter 631, the receiver may petition, upon approval of the court having jurisdiction as being in the best interest of the residents, the Agency for Health Care Administration for the conversion of sheltered nursing home beds of the facility to community nursing home beds. The agency shall, upon petition of the receiver and through an expedited review, issue a certificate of need converting the sheltered nursing home beds to community nursing home beds. The court having jurisdiction of the delinquency proceeding shall enforce the provisions of this section.

(11) For a provider issued a provisional certificate of authority after July 1, 1986, to operate a facility not previously regulated under this chapter, the following criteria must be met in order to obtain a certificate of need for sheltered beds pursuant to subsections (2), (3), (4), (5), (6), and (7):

(a) Seventy percent or more of the current residents hold continuing care or continuing care at-home contracts or, if the facility is not occupied, 70 percent or more of the prospective residents will hold such contracts as projected in the feasibility study and demonstrated by the provider’s marketing practices; and

(b) The continuing care or continuing care at-home contracts entered into or to be entered into by 70 percent or more of the current residents or prospective residents must provide nursing home care for a minimum of 360 cumulative days, and such residents shall be charged at rates that are 80 percent or less than the rates charged by the provider to persons receiving nursing home care who have not entered into such contracts.

(12) A facility that is under administrative supervision for financial problems pursuant to s. 651.018 may petition the Agency for Health Care Administration for the conversion of sheltered beds to community nursing home beds in accordance with the corrective action plan approved by the office. The agency shall, upon petition by the facility and through an expedited review, issue a certificate of need converting the sheltered nursing home beds to community nursing home beds.

(13) Residents, as defined in this chapter, are not considered new admissions for the purpose of s. 400.141(1)(n)1.